Oklahoma Legislature Passes Unconstitutional Bill That Makes Abortion A Felony

Oklahoma's Republican legislature passed a clearly unconstitutional bill outlawing abortion in the state.

abortion-law

Oklahoma’s Republican legislature passed a bill that would make it a felony for physicians to perform an abortion, a move that even some on the pro-life side of the argument are arguing is largely a waste of time given that it is likely to be declared unconstitutional:

The Oklahoma Legislature on Thursday passed a bill that would effectively ban abortions by subjecting doctors who perform them to felony charges and revoking their medical licenses — the first legislation of its kind.

In a year in which states have tried to outlaw abortions at 20 weeks ofpregnancy, to ban the main surgical method used in the second trimester and to shut down abortion clinics with onerous regulations, Oklahoma’s bill is the most far-reaching.

The measure, which passed the Republican-dominated Senate by a vote of 33 to 12, will be presented to Gov. Mary Fallin, a Republican, who will have five days to sign it, veto it or allow it to take effect without her signature.

If it becomes law, it is certain to face a quick challenge in state or federal court. And because the Supreme Court has consistently ruled that women have a right to obtain abortions until the fetus is viable outside the womb, legal experts say, it will soon be declared unconstitutional.

That has not deterred anti-abortion politicians in a state dominated by conservative Republicans. Some say they welcome the chance to make a strong statement and to engage the issues in court.

“Most people know I am for defending rights,” Senator Nathan Dahm, the author of the bill and a software developer from Broken Arrow, Okla., told The Oklahoman. “Those rights begin at conception.”

Mr. Dahm told reporters that he knew the measure would be challenged but expressed hope that the case would lead the Supreme Court to overturn Roe v. Wade.

Ms. Fallin, who has signed several anti-abortion bills that were later blocked by the courts, will not comment on the new bill “until she and her staff have had a chance to review it,” Michael McNutt, her communications director, said in an email.

But some legislators called the measure an ill-considered diversion.

“I’m pro-life and a Roman Catholic, but I don’t think we should waste our time on legislation that someone will declare unconstitutional,” Senator Ervin Yen, an anesthesiologist from Oklahoma City, and one of a small number of Republicans to oppose the bill, said in an interview.

In an open letter on Thursday, the Center for Reproductive Rights, a legal group based in New York, urged Ms. Fallin to veto what it said was a “blatantly unconstitutional measure.”

Noting that it has sued Oklahoma eight times in the last six years, blocking lesser restrictions like the state’s effort to ban the second-trimester surgical method, the center said that “this bill will almost certainly lead to expensive court challenges that the State of Oklahoma simply cannot defend in light of longstanding Supreme Court precedent.”

The bill would strip doctors who perform abortions of their medical licenses unless the procedure was necessary to save a woman’s life. The felony provision does not include that exception.

Currently, only two clinics in Oklahoma, one in Norman and one in Tulsa, provide abortions. A third, owned by Trust Women, a foundation based in Wichita, Kan., is under construction and is to open next month. Julie Burkhart, Trust Women’s chief executive, expressed dismay at the bill and urged Ms. Fallin to veto it.

Oklahoma’s proposal to criminalize abortion may be the most stringent, but it is one of many new measures that continue in conservative states. This year, South Dakota joined 12 other states in banning abortions at 20 weeks of pregnancy, with a similar bill in South Carolina awaiting the signature of Gov. Nikki R. Haley.

Alabama, Mississippi and West Virginia have passed laws to ban the use of the second-trimester surgical technique even though courts in Oklahoma and elsewhere have previously overturned such laws.

In addition to these cases, Texas passed a series of new laws that purport to subject abortion clinics to the same building and staffing requirements as ambulatory surgical centers and require abortion doctors to have admitting privileges at a local hospital. This law was also immediately challenged in Federal Court and is currently pending before the U.S. Supreme Court, where it was just argued this past March. To a large degree, of course, these regulations are intended to make it as difficult as possible for abortion clinics to operate in a given state, but they all stop short of an outright ban on the practice. To no small degree, this is because it was apparent even when Justice Scalia was alive that such a law would most likely not withstand scrutiny in the Supreme Court, and that it would be similarly unlikely to do so even in a court that is divided 4-4, largely because past cases seem to make it clear that while Justice Kennedy in particular may be willing to accept some degree of regulation of abortion by the states, he remains sufficiently supportive of the Court’s rulings in Roe v. Wade and Casey v. Planned Parenthood that he would likely join the Court’s liberals in striking a law like this down. Finally, of course, if Justice Scalia’s replacement ends up being a Democratic appointee, whether it is Judge Merrick Garland or a nominee appointed by Hillary Clinton should she win the White House in November then Republican efforts to chip away at Roe and Casey will be effectively blunted for some time to come.

Even if we get to that point, though, that doesn’t mean that the effort will come to an end. As the remarks in the excerpt above from the chief architect of the Oklahoma bill make clear, the fact that this bill is likely to be declared unconstitutional is irrelevant to the true purpose of the legislation. As with most such measures, what we’re looking at here is a dog whistle for the socially conservative wing of the Republican Party and a method of making them believe that they are actually accomplishing something when, in the end, all they are really doing is wasting a lot of time and money passing and defending a law that has no chance of being upheld whatsoever. With all of that in mind, it will be interesting to see if Oklahoma’s Republican Governor, Mary Fallin, will sign this bill into law or veto it and force the legislature to attempt an override or let the veto stand. In that regard, it’s worth noting that while Fallin is a conservative who has signed other bills to restrict abortion into laws in the past, she has also vetoed several pieces of legislation aimed at placating social conservatives on the ground that they went too far and stood no chance of surviving a legal challenge. Given that this bill is in front of her at the same time that she is apparently under consideration as Donald Trump’s running mate, it will be interesting to see what she does with this bill.

Update: Oklahoma Governor Mary Fallin has vetoed the bill that would have criminalized abortion.

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Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. KM says:

    That sound echoing around Oklahoma today is tax dollars being flushed down the toilet litigating this piece of crap. Conservative fiscal responsibility, my ass.

  2. Moosebreath says:

    Proving once again how much horsesh!t is the view from Andrew Sullivan (among others) that the culture wars are over, and how liberals should just let conservatives slowly abandon their positions without further pressure.

  3. C. Clavin says:

    Small Gubmint Republicans.
    Just a small preview of the authoritarianism we can expect under a President Trump.

  4. Jen says:

    @KM: Agreed. I keep waiting for a citizens’ initiative petition in one of these states that states that if these lawmakers think that it’s important to put forth unconstitutional laws to challenge Roe, they should foot the bill for defending these laws out of their own pockets.

  5. Franklin says:

    Maybe they should spending their time worrying about the man-made earthquakes there?

  6. D.J. McGuire says:

    How else can they make sure their supporters don’t notice when they raise taxes instead of cutting spending?

  7. Neil Hudelson says:

    Thank you, Oklahoma, for the pending giant check.

    -The ACLU

  8. Mu says:

    This is just another attempt to “prime the pipeline” in case of a favorable supreme court. It’s just designed to have an abortion case in front of the SCOTUS in 2018.

  9. HarvardLaw92 says:

    @Mu:

    I’m not even sure I’d go that far. It’s political theater in an election year.

  10. Davebo says:

    @HarvardLaw92:

    Political theatre in an attempt to make the public look the other way and not notice that a combination of reckless tax cuts and low oil prices has the state $1.3 billion dollars in the hole.

  11. Lit3Bolt says:

    Wastes of money in the defense of state-sanctioned theology is no vice.

    Or something like that.

  12. Neil Hudelson says:

    @Mu: @HarvardLaw92:

    Yeah, I’m going with the “political theater” route. It’s such a patently unconstitutional bill, that there is huge doubt that it would ever make it past the appellate court.

    Here in Indiana the general assembly passed a patently unconstitutional anti-abortion bill. The GOP’s own “expert witnesses” testified to the general assembly that they would be best to shoot the bill down, as even in their own extreme “pro-life” opinion, the law was crazy unconstitutional. The GOP passed it anyway, over the objections of most GOP women legislators.

    It’s an election year, and bills like this makes it easier for politicians to raise funds and drive out voters. The fact that they can figuratively punch a few poor women is just icing on the cake.

  13. al-Ameda says:

    @Neil Hudelson:

    It’s an election year, and bills like this makes it easier for politicians to raise funds and drive out voters. The fact that they can figuratively punch a few poor women is just icing on the cake.

    I agree. In their world this one is a freebie, playing with house money.

  14. MBunge says:

    making them believe that they are actually accomplishing something

    They pretty clearly are accomplishing something. Two abortion clinics in the entire state? Multiple other states passing lesser restrictions on abortion when we are two generations, so to speak, after Roe v Wade? There’s something to learn from the anti-abortion movement still going strong in the wake of the lightning fast collapse of the anti-gay marriage movement.

    Mike

  15. Hal_10000 says:

    @Moosebreath:

    The Culture Wars *are* over. This is Japanese soldiers on islands in the Pacific not having realized it. The gay marriage issue is basically dead. Birth control coverage is now mandatory for all but a handful of insurers. A few places have passed anti-trans bills but, notably, a few places have also rejected them (including a recent overwhelming rejection in Texas). I expect abortion is heating up because it’s basically the last stand for the Religious Right, having lost on every other front.

    The thing is, I’m not sure this would fly even if Scalia were still alive. Scalia and Thomas were reliable anti-Roe votes. But you probably had five pro-Roe votes (Kennedy was with the majority on Casey). That leaves Alito and Roberts. Both might vote against Roe but hard to tell with Roberts since he occasionally surprises us. Suspect he would defer to legislature in this case.

    I suspect this plays out with lower courts rejecting it (per Roe and Casey) and SCOTUS deciding to leave that be. If it does go to SCOTUS, we might be looking at 6-3 against the bill.

    So yeah, last cry of a dying political philosophy.

  16. An Interested Party says:

    There’s something to learn from the anti-abortion movement still going strong in the wake of the lightning fast collapse of the anti-gay marriage movement.

    Ahh but there’s a difference…most people opposed to abortion think of it as murder…that’s a little higher on the outrage scale than those icky people (many of whom may be your brother, your sister, your son or daughter, etc.) wanting to get married…

  17. PJ says:

    @MBunge:

    They pretty clearly are accomplishing something. Two abortion clinics in the entire state? Multiple other states passing lesser restrictions on abortion when we are two generations, so to speak, after Roe v Wade? There’s something to learn from the anti-abortion movement still going strong in the wake of the lightning fast collapse of the anti-gay marriage movement.

    The pro-gay movement can be set back decades by five or more conservative judges on the Supreme Court. And then they will also get to rule on abortion, and more.

  18. stonetools says:

    For the Democrats, its a great issue to drive women to the polls to make sure that we have a President and Senate that will put that fifth liberal on the SCOTUS to assure the right to reproductive choice. That right should not depend on what Kennedy feels like at some point in time.

  19. DrDaveT says:

    @stonetools:

    For the Democrats, its a great issue to drive women to the polls to make sure that we have a President and Senate that will put that fifth liberal on the SCOTUS to assure the right to reproductive choice.

    Unfortunately, Hillary is a sufficiently inept campaigner that I have no confidence that she will leverage this for all it should be worth. Kansas and Oklahoma ought to be the poster children held up to the rest of America to show what you need to be actively fighting to avoid.

  20. grumpy realist says:

    @DrDaveT: Maybe we’re too dumb to understand how good we’ve had it until we lose it again. Oh, abortion doesn’t have an effect on me, because I’m (male/celibate/past menopause/whatever). And then when it’s your wife/daughter/niece that ends up confronted with an unwanted pregnancy and decides that the only way out of the situation is an unbent coat hanger and aspirin….

    Or even worse, the “oh, MY abortion is moral. I’m not like those other sluts out there”.

    Maybe pregnant women should just walk into health clinics, request services, and then demand that the bill be sent to the local pro-life organization. Ditto for childbirth hospital services.

  21. Moosebreath says:

    @Hal_10000:

    “The Culture Wars *are* over. This is Japanese soldiers on islands in the Pacific not having realized it. ”

    No. Unlike the Japanese soldiers on islands, these are people in positions of power, who can and are using their power to continue to fight in ways that actually matter. It’s closer to declaring WWII over after Italy surrendered, when Germany and Japan were still fighting.

  22. steve s says:

    Oklahoma’s Republican-dominated legislature has filed a measure calling for President Barack Obama’s impeachment over his administration’s recommendations on accommodating transgender students, saying he overstepped his constitutional authority.

    this just in

  23. stonetools says:

    @grumpy realist:

    The court should just rule that every woman who is forced to carry an unwanted child to term in Oklahoma as a result of this law should be able to charge the state for the cost of raising that child to the age of majority. That bill would then be repealed at light speed.
    Pro lifers seem very invested in protecting the child till the moment of birth. Once that child is born-its on its own, and the mother, if unwed, instantly becomes a “lazy, shiftless welfare queen”.

  24. stonetools says:

    @steve s:

    Wow, all that fracking must have introduced something into the water.

    The members of the Oklahoma legislature seem to be examples of the final stage of what happens when someone is infected with the disease of modern American conservatism.

  25. Rafer Janders says:

    @An Interested Party:

    Ahh but there’s a difference…most people opposed to abortion think of it as murder…

    Except they don’t, not really. How do we know? Because they never actually favor life imprisonment or capital punishment for women who have abortions. If they actually thought abortion was the murder of a living baby, they’d certainly want the woman who murdered that baby punished with the full force of the law. But whenever the question “should women who have an abortion be executed or jailed for life?” is put to them, they always back down.

  26. steve s says:

    ^^^^^^^^^^^^^^^^^^YEP

  27. Gromitt Gunn says:

    Same-sex marriage is an outlier in both the civil rights arena and the culture war arena, in my opinion, because we came out in sufficient numbers in the 70s, 80s, and 90s to ensure that most white, middle class people below the age of 50 had at least one gay, lesbian, or bisexual sibling, uncle, aunt, close family friend, etc. by the time that Massachusetts ruled gay marriage legal in 2003.

    Essentially, LBG people went from being an out-group to an in-group over a 30 year period (roughly 1975 – 2005). There are still a number of legal battles to finish regarding employment and housing discrimination laws, but by and large, a white, middle-class gay person growing up now has the option to be a full participant in mainstream American culture, and their parents and siblings and cousins wouldn’t have it any other way.

    I am not sure if trans people are going to have the same journey. Gay people were in this weird demographic niche of consisting of around 5% of the total population. It’s a big enough group that we can’t effectively be ignored, but small enough to not be threatening to most people. Trans people seem to be a much smaller group, so I am not sure how that plays out in the long run.

    Regardless, ultimately, what the gay rights movement did successfully was transform the framework for discussing gay rights from a “look at those deviants!” culture war issue to a “How can we deny Bobby and Susie their civil rights?” issue of fundamental fairness.

    I don’t see a path for abortion that follows a similar trajectory. For a sizeable portion of the country, abortion is murder, and I don’t know how that gets reframed.

  28. MarkedMan says:

    But this IS today’s Republican Party. OK may be an especially egregious example, but this is what Republican elected officials spend time and energy on. Not improved infrastructure to attract business. Not a comprehensive business development plan that doesn’t consist of a bidding award to give public money dollars to companies who have made it plain that they will leave for the next sucker state as soon as the dust settles. Not making sure that it is easy and simple to start and run a business in their state. Not finding ways to maximize state education dollars and aligning their school systems so they can maximize federal funding received. Not trying to understand and alleviate the morass of different policies that govern families and doctors caring for our increasingly elderly population, such as whether a living will would be accepted or not, under what circumstances hospice care can be covered. I could go on and on and on. But you get the point.

    If you want the government to govern, you have to elect Democrats. I don’t think that is a good thing, but it is reality.

  29. Rafer Janders says:

    @Gromitt Gunn:

    For a sizeable portion of the country, abortion is murder, and I don’t know how that gets reframed.

    Again, they say it’s murder, but they don’t act like it is, not really. If they actually sincerely believe that living babies were being murdered in abortion clinics, they should be doing a damn sight more than picketing and yelling at the women who they supposedly believe are walking through the clinic doors to engage in baby murder.

  30. steve s says:

    If they really and truly believe that a million innocent American babies are being executed right down the street every year, and all they’re doing is voting and whining on the internet, they are reprehensible cowards.

  31. steve s says:

    their action prove that they know, somewhere deep down, that it’s not the same as murder.

  32. Jen says:

    Meanwhile, the House just slashed the President’s request for Zika virus funds, once again proving they are not ones for looking at the big picture.

    The Zika virus will spread first in the warmer, southern states that have made a legal abortion as hard to obtain as possible–and now it’ll be harder for those same states to fight against the virus when it gets here.

    So who will be paying for the care of the potentially hundreds of babies who will be born with microcephaly?

  33. Gavrilo says:

    @Rafer Janders:
    @steve s:

    Again, they say it’s murder, but they don’t act like it is, not really. If they actually sincerely believe that living babies were being murdered in abortion clinics, they should be doing a damn sight more than picketing and yelling at the women who they supposedly believe are walking through the clinic doors to engage in baby murder.

    If they really and truly believe that a million innocent American babies are being executed right down the street every year, and all they’re doing is voting and whining on the internet, they are reprehensible cowards.

    You mean, like, passing a law making it a felony for a doctor to perform an abortion?

  34. Ha Nguyen says:

    It will be interesting to see what the House does in response.

    http://www.rawstory.com/2016/05/cdc-says-157-pregnant-women-in-u-s-test-positive-for-zika/

    CDC says 157 pregnant women in US test positive for Zika

    Some 157 pregnant women in the United States and another 122 in U.S. territories have tested positive for infection with the Zika virus, the U.S. Centers for Disease Control and Prevention said on Friday.

    It was the first time the agency had disclosed the number of Zika-infected pregnant women in the U.S. and its territories.

  35. steve s says:

    @Gavrilo: I don’t argue with people who deliberately miss the point.

  36. Rafer Janders says:

    @Gavrilo:

    You mean, like, passing a law making it a felony for a doctor to perform an abortion?

    Yeah, I see a woman walking by me holding a baby and carrying a cleaver, and she announces to me that’s she’s at that moment going to walk into a room and chop the baby up. Do I, horrified, wrestle her the ground, take the cleaver and baby away from her, and deliver her to the police?

    No, man, I let her do it and, then much later I vote for a law.

  37. Rafer Janders says:

    @steve s:

    I don’t argue with people who deliberately miss the point.

    You and I are very different people.

  38. steve s says:

    I like intelligent discussion. One day, years from now, some will exist in the GOP again.

  39. Gavrilo says:

    @Rafer Janders:

    So…you think they should bomb clinics and gun down doctors? Good to know!

  40. CB says:

    @Gavrilo:

    Brother, if they literally believe it is the grandest genocide in human history, and all they’re doing is passing a law and kvetching…color me unconvinced.

  41. KM says:

    @Gromitt Gunn:

    I don’t see a path for abortion that follows a similar trajectory. For a sizeable portion of the country, abortion is murder, and I don’t know how that gets reframed.

    By making them understand just how many of their fellow Americans are “murderers” or are related to one. The logic you described from SSM will still hold; right now the stereotype is a slutty, irresponsible woman who just wants to party/be unburdened and a sadistic male who heartless pushes for the destruction of his ill-gotten offspring. Flip the script: when you realize you may not be the firstborn in your family if your teenage mother had decided differently, when you realize that the loving father of 2 next door could have been the father of 3, when you realize how common it really is…. you rethink what it mean. You rethink that it’s not a thoughtless act of post hoc birth control but a decision made by circumstances and necessity. The moral outrage over SSM faded when people got to know the “sinners” and saw humans instead. Hard to call mom a “murderer” (a good statistic possibility) and still have family dinner after all….

  42. KM says:

    @steve s:

    If they really and truly believe that a million innocent American babies are being executed right down the street every year, and all they’re doing is voting and whining on the internet, they are reprehensible cowards.

    As many are born-again Christians, they will held accountable for their sins, both actions and inactions, after death according to their faith. So do they really think Jesus would be OK “I know they were killing babies but I totally waved a sign saying stop it! And help pass a law about it!”? That He will say “It’s fine, my child. The innocent was snuffed out but your sign was sufficient protest in My eyes”? If not, then every street-screaming I’m-Saved-hallelujah RWNJ is going to burn like a tire fire along with the sinner in question – the Almighty would spit them out like the lukewarm water they are.

    Won’t they be surprised?

  43. Hal_10000 says:

    @Moosebreath:

    The Culture War has had two defining features:

    1) a series of overwhelming victories for our “side”.

    2) constant whinging because the victories were not fast or thorough enough.

    To compare what remains of the Religious Right to Germany and Japan in 1943 is a perfect illustration of this.

  44. steve s says:

    vetoed

  45. Hal_10000 says:

    Looks like she vetoed it. Not surprised. It was political poison.

  46. Just 'nutha ig'rant cracker says:

    @KM: The moral outrage over SSM fill in the blank fadesd when people got get to know the “sinners” and saw see humans instead.

    Pardon the edit, but THIS to infinity.

  47. Just 'nutha ig'rant cracker says:

    @Gavrilo: Well, I can’t speak for the others on the thread, but if the abortion opponents truly believe what they say about 1 million murders a year, then the few who are burning the clinics to the ground and bringing the doctors our dead are acting in a manner consistent with their beliefs (have I mentioned before that I have some sociopathic tendencies?).

    Now all they need to add is standing in court willing to honor those beliefs, instead of declaring that their actions are only answerable to God Almighty (although, I think the state should be willing to extradite them).

  48. Gromitt Gunn says:

    @Rafer Janders: Here’s a crazy idea…. Maybe next time before you put on your +3 Helm of Arrogant Mansplaining to dress me down like an errant child, consider the likelihood that we were both writing our initial comments *at the same time* and so I didn’t see yours until after I posted my own.

  49. Rafer Janders says:

    @Gromitt Gunn:

    Umm, I was expanding on your idea, not dressing you down. I think you should re-read what I wrote, because I don’t think you got it.

  50. Moosebreath says:

    @Hal_10000:

    Funny. It’s almost like no one else in thread uses WWII analogies. Except, of course, @you: